BEFORE THE TRANSPORTATION COMMISSION

OF THE STATE OF MONTANA

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TO: All Concerned Persons

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1. On April 21, 22, and 28, 2008, at 6:30 p.m., the Transportation Commission will hold public hearings in Kalispell, Missoula, and Billings, Montana, to consider the proposed amendment of the above-stated rules. Hearings will be held on April 21, 2008, at 6:30 p.m., at the Hilton Garden Inn, 1847 U.S. Hwy 93 S., Kalispell, Montana; on April 22, 2008, at 6:30 p.m., at Ruby's Inn & Convention Center, 4825 North Reserve St., Missoula, Montana; and on April 28, 2008, at 6:30 p.m., at the Billings Hotel, 1223 Mullowney Lane, Billings, Montana.

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2. The Transportation Commission will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or who need an alternative accessible format of this notice. If you require an accommodation, contact the Transportation Commission no later than 5:00 p.m. on April 14, 2008, to advise us of the nature of the accommodation that you need. Please contact Renee Wuertley, Department of Transportation, P.O. Box 201001, Helena, Montana 59620; telephone (406) 444-9455; fax (406) 444-7206; TDD/Montana Relay Service 1 (800) 335-7592; or e-mail [email protected].

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3. The rules as proposed to be amended provide as follows, new matter underlined, deleted matter interlined:

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18.6.202 DEFINITIONS (1) remains the same.

(2) "Commercial electronic variable message signs (CVMS)" means signs other than electronic billboards which contain, include, or are illuminated by any flashing, intermittent, or moving light or lights, producing the illusion of movement by means of electronic, electrical, or electro-mechanical input and/or the characteristics of one or more of the following classifications:

(a) flashing signs are animated signs or animated portions of signs whose illumination is characterized by a repetitive cycle in which the period of illumination is either the same as, more than, or less than the period of no illumination;

(b) patterned illusionary movement signs are animated signs or animated portions of signs whose illumination is characterized by simulated movement through alternate or sequential activation of various illuminated elements for the purpose of producing repetitive light patterns designed to appear in some form of constant motion;

(c) environmentally activated signs are animated signs or devices motivated by wind, thermal changes, or other natural environmental input, including spinners, pinwheels, pennant strings, reflective disks, rotating slats, glow cubes, and/or other devices or displays that respond to naturally occurring external motivation to include light-sensitive devices;

(d) mechanically activated signs are animated signs characterized by repetitive motion and/or rotation activated by a mechanical system powered by electric motors or other mechanically induced means.

(3) and (4) remain the same.

(5) "Electronic billboard (EBB)" means electronic signs on which messages may be changed on-site or remotely through hard wire or wireless communications and which have the capability to present any amount of text or symbolic imagery. The term includes, but is not limited to, "digital" signs, and "light emitting diode (LED)" signs. The term does not include commercial variable message signs.

(5) through (13) remain the same but are renumbered (6) through (14).

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AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-112, 75-15-113, 75-15-121, MCA

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18.6.232 COMMERCIAL ELECTRONIC VARIABLE MESSAGE SIGNS PROHIBITED SIGNS (1) The following types of Off off-premise commercial electronic variable message signs, regardless of the message, are prohibited in controlled areas. :

(a) commercial variable message signs (CVMS); and

(b) electronic billboards (EBB).

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AUTH: 75-15-121, MCA

IMP: 75-15-111, 75-15-113, MCA

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REASON: The proposed amendment of these rules is necessary to address the matter of regulation of electronic billboards (EBB) in the state of Montana. Current administrative rule language on commercial variable message signs--i.e., signs which flash or move or use intermittent lights--includes only the older types of mechanical or electrical signs and prohibits their use. This prohibition is necessary as it is written into the State-Federal Agreement signed by the U.S. Secretary of Transportation and the State of Montana in the 1970s.

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However, technology has advanced with the wide-spread availability of electronic billboards (EBB), on which the message can be changed remotely through a computer, either hard wire or wireless. The new electronic billboards, which are also known as "LED" signs, do not change messages via "flashing" or "intermittent" lights. Instead, the EBBs contain a static commercial advertising electronic face, which remains for a set duration such as eight seconds, after which the entire electronic face changes to a new static message with no flashing involved.

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Therefore, in a memorandum issued September 2007, the Federal Highways Administration (FHWA) stated electronic billboards may conform to the federal Highway Beautification Act of 1965 and its amendments, which Montana is obligated to enforce. The memo stated the law prohibits only flashing, intermittent, or moving lights on billboards, which the FHWA interpreted as different from the electronic billboards, in which images are fixed for several seconds.

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FHWA therefore requires Montana to interpret its Federal-State Agreement, and address the matter of EBBs in Montana. MDT has determined that its current administrative rule language, which only addresses older commercial variable message sign technology, may be outdated, as it does not address newer technology such as EBBs.

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The proposed amendments to ARM 18.6.202 would first distinguish between the newer EBBs and the older commercial variable message signs by eliminating the word "electronic" from (2) of the rule to avoid confusion. The proposed amendments would then create a new definition at (5) for "electronic billboards" which sets forth the characteristics of this new type of sign.

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The proposed amendment to ARM 18.6.232 would continue to prohibit older types of variable message signs, on which messages are changed through flashing or intermittent-type lights. These older-type signs are expressly prohibited in a State-Federal Agreement for controlled areas.

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The proposed amendment to ARM 18.6.232 would also prohibit newer-type off-premise commercial electronic billboards in the state by listing this newer technology category separately to make it clear that both types of signs are prohibited. Such prohibition is allowed under the State-Federal Agreement. The proposed EBB prohibition would be consistent with the state's existing prohibition of older technology commercial variable message signs.

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4. Concerned persons may submit their data, views, or arguments concerning the proposed action either orally or in writing at the hearing. Written data, views, or arguments may also be submitted to: Renee Wuertley, Department of Transportation, P.O. Box 201001, Helena, Montana 59620; telephone (406) 444-9455; fax (406) 444-7206; or e-mail [email protected], and must be received no later than 5:00 p.m., May 5, 2008.

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5. The department will designate a hearings officer to preside over and conduct these hearings.

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6. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency. Persons who wish to have their name added to the list shall make a written request that includes the name and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Such written request may be mailed or delivered to the contact person in 4 above or may be made by completing a request form at any rules hearing held by the department.

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7. An electronic copy of this Proposal Notice is available through the Secretary of State's web site at http://sos.mt.gov/ARM/Register. The Secretary of State strives to make the electronic copy of the Notice conform to the official version of the Notice, as printed in the Montana Administrative Register, but advises all concerned persons that in the event of a discrepancy between the official printed text of the Notice and the electronic version of the Notice, only the official printed text will be considered. In addition, although the Secretary of State works to keep its web site accessible at all times, concerned persons should be aware that the web site may be unavailable during some periods, due to system maintenance or technical problems.

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8. The bill sponsor notice requirements of 2-4-302, MCA, do not apply.

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/s/ Carol Grell Morris���������������� /s/ Nancy Espy

Carol Grell Morris����������������������Nancy Espy

Alternate Rule Reviewer�������������Chair

������������������������������������������������Transportation Commission

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Certified to the Secretary of State March 17, 2008.